STATE OF UTAH, IN THE INTEREST OF A.K., A PERSON UNDER EIGHTEEN YEARS OF AGE. T.K., Appellant, v. STATE OF UTAH, Appellee.
No. 20140269-CA
THE UTAH COURT OF APPEALS
Filed February 20, 2015
2015 UT App 39
Fourth District Juvenile Court, Heber Department. The Honorable Mary T. Noonan. No. 1085500. Corbin B. Gordon and Marie N. Bramwell, Attorneys for Appellant. Sean D. Reyes and John M. Peterson, Attorneys for Appellee. Martha Pierce, Guardian ad Litem.
Opinion
TOOMEY, Judge:
¶1 T.K. (Mother) challenges the juvenile court’s decision to terminate her parental rights to A.K. We affirm.
¶2 Mother has three biological children: E., J.P., and A.K.2 In 2006, E. was removed from Mother’s custody in California because of domestic violence and substance abuse issues. Mother participated in reunification services, but E. was never returned to her custody and her parental rights with respect to E. were terminated in March 2008.
¶3 J.P. was born to Mother and G.G. in 2009. In the fall of 2010, also because of domestic violence and substance abuse issues, J.P. was removed from Mother’s custody. Mother participated in reunification services again, which included counseling sessions for domestic violence, substance abuse, and parenting.
¶4 A.K. was born to Mother and R.K. (Father) in June 2011. A.K. remained in Mother’s custody because she was maintaining sobriety and stability at that time, and J.P. was returned to her care later that year.
¶5 Mother’s reunification with J.P. was short-lived, however, because in November 2012, she started abusing drugs again. Mother and Father also began fighting with one another, which prompted Mother to send A.K. and J.P. to live with Father’s mother (Grandmother). Grandmother took both children to Utah
¶6 In June 2013, Mother and Father were arrested and incarcerated. Consequently, the children were placed in the custody of the Division of Child and Family Services (DCFS). In its Verified Petition for Custody (Verified Petition), DCFS asked the juvenile court to find that J.P. and A.K. were “abused, and/or neglected” and to award it custody and guardianship. In support of the Verified Petition, DCFS described recent instances of domestic violence between the parents, the parents’ history of substance abuse, J.P.’s prior removal from Mother’s care because of “drug issues,” the parents’ criminal histories, J.P.’s report that Mother slaps him and A.K., and the parents’ chaotic lifestyle as evidenced by five moves between March 2013 and June 2013 and a lack of household furniture. Because of their incarceration, Mother and Father stipulated that DCFS would have temporary custody of the children. The juvenile court scheduled a pretrial hearing on the Verified Petition for June 20, 2013.
¶7 Mother and Father admitted most of the allegations set forth in DCFS’s Verified Petition. Accordingly, at the subsequent adjudication hearing, the juvenile court adopted those allegations as facts and ultimately concluded that J.P. and A.K. “are neglected in that they lack proper parental care by reason of the fault or habits of the mother and father.” The court also substantiated DCFS’s “findings of child endangerment, physical neglect, and domestic violence related child abuse against both parents.” Based on its findings and conclusions, the court granted custody and guardianship of J.P. and A.K to DCFS.
¶8 The court held a disposition hearing on September 19, 2013, to determine whether to order reunification services. DCFS opposed reunification services. The court heard testimony from Mother and accepted her stipulation to additional facts regarding her history in California. Based on her testimony and
(a) E. had already been removed, notwithstanding Mother’s participation in reunification services;
(b) J.P. had previously been removed from Mother’s care because of “domestic violence, drug use, and instability“;
(c) Mother had participated in inpatient and outpatient reunification services aimed at protecting J.P. “from further incidents of abuse and neglect“;
(d) Despite participating twice in reunification services, J.P. and A.K. were now in DCFS custody because of “the same issues . . . that were supposedly addressed back then” by those “extensive” services;
(e) Mother failed to remove herself from Father and the court was skeptical of her claim they had separated.
¶9 The court acknowledged Mother’s determination to successfully parent her children when she was supervised, but noted that when she was unsupervised, she seemed to “return[] to patterns of behavior that expose the children to neglect.” In declining to order reunification services, the court also noted it had considered the statutory factors listed in section
¶10 At the permanency hearing, the juvenile court adopted the primary permanency goal of permanent custody and guardianship of J.P. to his biological father, G.G., and concluded that the primary permanency goal in A.K.’s best interest would be adoption. Consequently, DCFS filed a Verified Petition for Termination of Parental Rights with regard to A.K.
¶11 At the termination trial, Mother testified on her own behalf. In addition, she called witnesses, including mental-health, substance-abuse, and parenting counselors from whom she had or was currently receiving treatment. Specifically, Verna Dallin testified that she worked with Mother twice in August 2013 and regularly from November 2013 to January 2014 to help strengthen life skills and manage anxiety. Additionally, over Mother’s objections, the court heard testimony from A.K.’s foster mother (Foster Mother) about his improvement and development while in DCFS’s custody. Foster Mother also testified that if A.K. became “legally free” for adoption, she would be interested in adopting him.
¶12 On March 20, 2014, the juvenile court concluded, “It is appropriate and strictly necessary to terminate the father’s and mother’s parental rights as [A.K.] needs to achieve a sense of permanency, stability and security and the parents have been unable to demonstrate an ability to meet [A.K.’s] needs and provide him with that stability and security.”3 In support of this conclusion the court cited, among other things, Mother’s history in California, her continued struggles with domestic violence
ISSUES FOR REVIEW
¶13 First, Mother contends the juvenile court improperly found reunification services were inappropriate. She argues that the court (A) failed to properly weigh evidence that rebutted the presumption against reunification services, and (B) erred in finding reunification services inappropriate under
ANALYSIS
I. The Clear Weight of the Evidence Supports the Juvenile Court’s Decision Not to Order Reunification Services.
¶14 Mother argues the juvenile court erred when it found reunification services inappropriate. Specifically, she argues the court (A) failed to properly weigh evidence that rebutted the
¶15 The juvenile court’s decision to deny reunification services is within its sound discretion, and parents “have no constitutional right to receive these services.” In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998); see also
A. The Juvenile Court Did Not Err When It Found a Presumption Against Ordering Reunification Services.
¶16 The juvenile court found a presumption against reunification services because Mother’s first child, E., was removed and her parental rights were terminated after reunification efforts failed. According to Utah Code subsection
¶17 Mother does not dispute that there is clear and convincing evidence to support the finding that her parental rights were terminated with regard to E. Instead, she argues the juvenile court abused its discretion when it improperly weighed the evidence that she had submitted to rebut the presumption against reunification services.6 In particular, Mother asserts that although there was a presumption against reunification services based on the termination of her parental rights with regard to E., this was outweighed by the following evidence: (1) “the second offer of reunification services in California, in 2010, resulted in full restoration of custody [with regard to J.P.] after successful completion of numerous state services, and a period of several years of stability and progress“; (2) losing custody of E. only occurred because she was young and under the control of an abusive gang member; (3) Father no longer lived with her; and
¶18 First, the court clearly acknowledged Mother’s successful completion of reunification services with regard to J.P. but ultimately found it doubtful she could remain successful another time without the State’s supervision. Even with that supervision, Mother repeatedly tested positive for drugs throughout A.K.’s welfare proceedings and had not completed the reunification services provided with regard to E. Additionally, J.P. was removed from Mother’s custody for a second time for the same issues that were supposedly addressed by her previous reunification efforts.
¶19 Second, Mother does not argue that the court failed to consider that she was “young and under the control of an abusive gang member” when E. was removed from her custody. Instead, she argues only that this fact was inappropriately weighed, but she fails to demonstrate how being young and under the control of an abusive man outweighed the undisputed fact that her parental rights with regard to E. were terminated after unsuccessful reunification efforts.
¶20 Third, the court considered Mother’s statement that she had separated from Father, but it found this was outweighed by the fact they have not divorced and by Mother’s pattern of separating and reuniting with him. Moreover, Mother did not sever ties to Father and continued to communicate with him.
¶21 Finally, Dallin’s testimony that Mother would benefit from further reunification services did not outweigh the other evidence. Mother presented this evidence only at the termination hearing, months after the disposition hearing during which the court decided against ordering reunification services. Moreover, Dallin’s testimony seemed to contradict Mother’s contention that she would successfully complete reunification services. At the termination hearing, Dallin testified that although Mother had
¶22 In sum, Mother has failed to demonstrate how the juvenile court improperly weighed the evidence or how the court’s decision is an abuse of discretion. Moreover, to place more emphasis on Mother’s past successes and give them their “full evidentiary weight” as Mother requests, would require us to inappropriately reweigh the evidence and substitute our judgment for that of the juvenile court.
B. The Juvenile Court Did Not Err in Finding that Mother Failed to Respond to Previous Reunification Services and Had a History of Violent Behavior Directed at A.K. or an Immediate Family Member.
¶23 Mother argues the juvenile court erred when it found that ordering reunification services was inappropriate under
¶24 First, Mother argues the juvenile court improperly determined that she had failed to respond to previous reunification services. She claims that restoration of custody of J.P. shows she successfully responded to reunification services. The juvenile court found, however, that the children’s removal after she had twice received reunification services, which supposedly addressed her problems, demonstrated her failure to respond to those services.
¶25
¶26 Second, Mother argues the juvenile court erred when it determined there was a history of violent behavior against A.K. or a family member. Specifically, Mother contends the juvenile court improperly weighed this factor against her because she was often the victim of the violence.
¶27
¶28 The juvenile court’s order contained pages of detailed findings addressing each of the factors in
II. The Clear Weight of the Evidence Supports the Juvenile Court’s Termination of Mother’s Parental Rights.
¶29 Mother argues the clear weight of the evidence presented at trial is against the juvenile court’s ruling that she was unfit and has failed to adjust.8 In particular, Mother argues the juvenile court failed to appropriately weigh her recent efforts to reunify with A.K and her past reunification successes.
¶30 “Whether a parent’s rights should be terminated . . . re[lies] heavily on the juvenile court’s assessment and weighing of the facts.” In re B.R., 2007 UT 82, ¶ 12. The juvenile court must weigh any evidence of Mother’s present abilities against evidence of her past conduct, and her unwillingness or inability to improve her conduct. Id. ¶ 13. Because of its “advantaged position with respect to the parties and the witnesses,” we afford the juvenile court “a high degree of deference,” overturning its decision only if it is “against the clear weight of the evidence or leave[s] the appellate court with a
¶31 In In re B.R., our supreme court upheld the juvenile court’s decision to terminate a mother’s parental rights, stating, “The juvenile court did not err in concluding that nine years of chronic drug use, including twelve months of continued drug use during the reunification period, was not outweighed by [the mother’s] recent efforts.” Id. ¶ 15. Furthermore, the court deemed it an “inappropriate substitution of the court of appeals’ judgment for that of the juvenile court” to put more emphasis on a parent’s recent rehabilitative efforts than the juvenile court did. Id. ¶ 14.
¶32 Here, the court acknowledged Mother’s independent efforts to attend substance-abuse counseling, individual counseling, and parenting classes, but noted they were only initiated a little over a month after DCFS filed a petition to terminate her parental rights. The court expressly “consider[ed] these services in light of the past services that [Mother] participated in while living in California.” In California, Mother participated in inpatient and outpatient treatment, individual counseling, and life-skills, anger-management, family-recovery, relapse-prevention, and parenting classes. Nevertheless, because her other children have since been removed on separate occasions for similar issues, the court found she had failed to demonstrate the skills previously taught. Furthermore, from November 2012 to the termination hearing, Mother failed to achieve any stability as she continued to live in hotels, stayed with friends or family, and went to jail. Despite extensive inpatient and outpatient treatment, Mother continues to habitually abuse drugs. Similar to In re B.R., Mother’s long history of drug abuse and pattern of instability is not outweighed by her recent efforts. Mother’s longest period of sobriety was four years, but in the five-month period between the disposition hearing and the termination trial Mother tested positive for drugs at least twelve times. Indeed, at trial Mother
¶33 While it is true that Mother successfully regained custody of J.P. after receiving services, the court found it troubling that J.P. and A.K. were removed for the same issues that were addressed in her previous reunification efforts. The court also noted these issues were the same issues that led to the termination of parental rights with regard to E. By weighing Mother’s past reunification efforts—such as attending substance abuse treatment and parenting classes—and her past issues with drug abuse and domestic violence against her current drug abuse, instability, and delayed efforts to reunify with A.K., the court properly weighed her past circumstances against her present abilities. If we were to reweigh the evidence, putting more emphasis on Mother’s recent reunification efforts or the absence of abusive men in her life, it would be an improper substitution of our judgment for the juvenile court’s. Accordingly, we conclude the juvenile court did not abuse its discretion when it found Mother unfit and unable to adjust.
III. The Juvenile Court Did Not Abuse Its Discretion When It Allowed Foster Mother to Testify.
¶34 Mother’s final argument concerns the juvenile court’s decision to allow Foster Mother to testify at trial. Mother argues that Foster Mother’s testimony was inherently biased and allowing her to testify rendered the proceedings fundamentally unfair. The State responds that not only was the juvenile court required to “consider the ties between the foster family and the child,” but Mother also had the opportunity to explore Foster Mother’s bias during cross-examination, thereby challenging the credibility of her testimony. The State also argues there was no danger of unfair prejudice under
CONCLUSION
¶36 The juvenile court properly found a presumption against ordering reunification services. Mother has failed to demonstrate that the juvenile court’s decision against ordering reunification services and its findings that she was unfit and unable to adjust were against the clear weight of the evidence. Moreover, the juvenile court did not abuse its discretion by allowing Foster Mother to testify at the termination trial.
¶37 We affirm the juvenile court’s decision to terminate Mother’s parental rights with respect to A.K.